Sonia Sotomayor and Diversity on the Federal Bench

Supreme Court Justice Sonia Sotomayor
Supreme Court Justice Sonia Sotomayor (Ron Edmonds - AP)
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Wednesday, August 26, 2009

President Obama changed the ethnic makeup of the Supreme Court by choosing Sonia Sotomayor to be the first Hispanic justice. But her elevation reduced the number of Latina federal appeals court judges by one-third.

Diversity on the federal bench is relatively low, though it's increasing. Sotomayor is part of a pattern among judges nominated by recent presidents, both Democratic and Republican, according to Russell Wheeler, a scholar at the Brookings Institution.

"Sotomayor has been part of three trends since the 1950s -- an increase in the proportion of women and in members of racial and ethnic minorities and a decrease in the proportion of district judges appointed, as was she, from among private lawyers," Wheeler wrote in a new report, "The Changing Face of the Federal Judiciary."

Obama already has had one opportunity that every president hopes for -- the chance to appoint a Supreme Court justice. But as a result, his nominations to other levels of the federal bench have lagged. President George W. Bush had nominated 48 people to district and courts of appeals judgeships at this point in his presidency, according to the Alliance for Justice; Obama has nominated 16 besides Sotomayor, the only nominee so far confirmed by the Senate.

But Obama's choices would greatly add to the bench's diversity: six white men, two white women, three black men, two black women, two Asian American women and one Asian American man. Asian American judges have been so rare on the federal bench that Wheeler did not account for them in his historical survey.

Despite recent advances by women and minorities, the Bureau of Labor Statistics last year reported that two-thirds of active lawyers are men, with small percentages of Hispanic, black and Asian American practitioners.

Wheeler's study also showed a decline in the percentage of lawyers in private practice who become judges, a trend that would continue with Obama's nominees. Chief Justice John G. Roberts Jr. and others before him have attributed that drop to judicial salaries, which are far above the pay for most Americans but less than accomplished lawyers can make in private practice or, in some cases, as law school professors.

Sotomayor, for instance, mentioned during her confirmation hearings the pay cut she took when she left private practice 17 years ago for an appointment as a district judge. Roberts, who has made increasing judicial pay a priority, has said the trend away from private lawyers joining the bench will not maintain "the sort of judiciary on which we have historically depended to protect the rule of law in this country."

But, as Wheeler noted, others have said that judges appointed from public-service jobs may be more committed to that kind of practice and that salary is not a determining factor for those lawyers who want to be judges.

-- Robert Barnes

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